In Telescope Media Group v. Lucero, 936 F.3d 740 (8th Cir. 2019), the Eighth Circuit held that Minnesota could not enforce its public accommodations law against a company that refused to provide video services for same-sex weddings. The process of producing a video, the court said, constitutes “speech” and would be posted on the company’s website. The company sought to produce wedding videos of opposite-sex couples to “affect public attitudes and behavior” by “depict[ing] marriage as a divinely ordained covenant” that exists “between a man and a woman.” To forced them to produce videos for same-sex couples constitutes compelled speech that violates the Constitution’s protection for freedom of speech. The court emphasized the creative work that would go into editing; the company was not simply videotaping the wedding but retained “ultimate editorial judgment and control.”
The court accepted the company’s assertion that if it provided its services for same-sex couples, this would “compel [it] to speak favorably about same-sex marriage” and constitute a “content-based regulation” of speech.
The court argued that “regulating speech because it is discriminatory…is not a compelling state interest.” It recognized that:
“a public-accommodation law requiring a restaurant to serve people of all races, genders, and sexual orientations will have the incidental effect of requiring servers to speak to customers to take their orders. But these consequences are incidental because the relevant laws target the activities of hiring employees and providing food, neither of which typically constitutes speech. Here, by contrast, Minnesota is targeting speech itself.”
It is unclear how this principle would apply if a restaurant or other public accommodation spoke disparagingly to customers because of their race or religion or if an employer engaged in sexual harassment of an employee. Antidiscrimination laws cannot function if they cannot regulate speech. Perhaps the court thought that a requirement to refrain from saying what you want to say is different from being compelled to utter words. It also is hard to see why the company would not be free to make the same claim to justify refusing to serve interracial couples or Jewish couples.
A dissenting judge noted that “no court has ever afforded “affirmative constitutional protections” to private discrimination.” She also denied that the statute “force[d anyone] to speak and to convey a message with which they disagree.” She continued:
“The Larsens remain free to communicate any message they desire—about same-sex marriage or any other topic—or no message at all. What they cannot do is operate a public accommodation that serves customers of one sexual orientation but not others. And make no mistake, that is what today’s decision affords them license to do.”
The case was cited in Brush & Nib Studio, LC v. City of Phoenix, 448 P.3d 890 (Ariz. 2019), which came to a similar conclusion with regard to a company that refused to design wedding invitations for a same-sex couple.